Citation Nr: 9917304
Decision Date: 06/23/99 Archive Date: 06/29/99
DOCKET NO. 98-04 996 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for a benign osteochondroma
of the right distal femur.
ATTORNEY FOR THE BOARD
R. A. Seaman, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1966 to October
1966.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a
January 1998 decision by the Department of Veterans Affairs
(VA) Regional Office (RO) in Los Angeles, California.
The Board notes that the veteran was scheduled for a Travel
Board hearing in Los Angeles, California, and given notice of
the date and time thereof. However, the veteran failed to
appear for the hearing, and there is no indication of record
that he requested that the hearing be postponed. Thus, this
appeal continues as though the veteran's request for a
hearing had been withdrawn. 38 C.F.R. § 20.704 (d).
REMAND
The veteran contends that he injured his right knee in a slip
and fall accident that occurred while he was in service, and
that this accident aggravated a pre-existing right knee
condition.
Service medical records confirm that the veteran's right knee
disorder pre-existed his entrance into active duty. During
the pre-induction physical examination, the service physician
noted a "large firm bony prominence" on the medial aspect
of the veteran's right knee. A January 1966 X-ray
examination of the veteran's right knee revealed a benign
osteochondroma along the medial margin of the distal femur.
On September 1, 1996, a "fairly large" osteochondroma,
distal right femur "subject to continued and repeated
injury" was diagnosed, and the service physician further
noted that the veteran's right knee disorder existed prior to
service.
A Medical Board was convened in order to assess the veteran's
fitness for service. During a Medical Board examination on
September 6, 1966, the veteran noted that he had previously
experienced swollen or painful joints. He also stated that
he had "trouble with [his] right leg. Constant injury from
accident to accident."
On September 23, 1966, a Medical Board physician opined that
the veteran's osteochondroma was not incurred in the line of
duty, but rather, was congenital, and also found that it was
not aggravated by active duty. The Medical Board's clinical
record dated September 27, 1966, noted that the veteran
"will have repeated complaints and will not carry out
effective duty or get through basic training," and recommend
that the veteran be separated from military service "as he
is unfit . . . ." The record reflects that the veteran was
honorably discharged form service in October 1966.
Under 38 U.S.C.A. § 5107(a), a claimant has the initial
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that a claim of
entitlement to service connection is well grounded. Grivois
v. Brown, 6 Vet. App. 136 (1994); Tirpak v. Derwinski, 2 Vet.
App. 609 (1992). A well-grounded claim has been defined as
being "a plausible claim, one which is meritorious on its
own or capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
[section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990).
The record reflects that, after the veteran submitted his
claim for service connection, the RO requested that he submit
any post-service medical records that might be pertinent to
his claim. In an undated letter sent to the RO in response
to its request, the veteran reported that he had received no
post-service treatment for his knee condition. Notably,
however, he stated that "[t]he doctors at the VA have all
been wonderful to me." In his January 1998 notice of
disagreement, the veteran stated that "[t]he people at the
VA have been great," and "[t]hank God for those pain
killers the VA has allotted me." In his substantive appeal,
the veteran reiterated that "the VA has been great to me and
I thank everyone over there for all the pills[,] elastic
boots . . . and the advice."
There is no indication of record, however, that the RO took
any action, by way of obtaining pertinent records, based upon
the veteran's statements indicating that he received medical
attention at a VA facility. In the instant case, the Board
finds that the veteran's statements provide credible evidence
that he received medical attention at a VA Medical Center.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter "the Court") has held that where the
veteran has asserted that pertinent medical records are in
existence and are in the Government's possession, any such
records which are in existence are constructively of record.
See Bell v. Derwinski, 2 Vet. App. 611 (1992).
The failure of the RO or the Board to consider any pertinent
records of VA treatment which are in existence, even though
not actually in the records assembled for appellate review,
may constitute clear and unmistakable error. The fact that
there is evidence of record suggesting that the veteran's
right knee disorder was not aggravated by service does not
abrogate VA's duty to collect and review all the evidence
within its possession. Because these records are in VA's
"possession" pursuant to Bell, but are not yet associated
with his claims file, the Board concludes that a remand is
required on the facts of this case.
Accordingly, this case is remanded for the following:
1. The RO should request that the
veteran identify the VA Medical Center(s)
wherein he received treatment for his
right knee disorder. The RO should
obtain these records and associate them
with the claims file.
2. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the veteran should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
The case should then be returned to the Board, if otherwise
in order, for further appellate review. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).